IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR.JUSTICE B. VEERAPPA WRIT PETITION NOs.35487 - 35489/2017 (GM-CPC) BETWEEN:
1. S. GIRIYAPPA S/O. LATE KENCHAPPA AGED ABOUT 74 YEARS, OCC: ADVOCATE & AGRICULTURIST, R/O. KUCHALAKKIKERI, B.H. ROAD, SHIVAMOGGA, PIN CODE: 577201.
2. SMT. HEMALATHA W/O. ESWARA, D/O. S. GIRIYAPPA AGED ABOUT 42 YEARS, OCC: HOUSEHOLD, R/O. KUCHLAKKIKERI, B.H. ROAD, SHIVAMOGGA-577201.
3. SMT. S.G.PUSHPALATHA W/O. VISHWANATHA D/O. S. GIRIYAPPA, AGED ABOUT 40 YEARS, OCC: HOUSEHOLD, C/O. SUBBAIAH REDDY, 5TH CROSS, HOLEBENAVALLI POST, SHIVAMOGGA TALUK-577202.
4. S.G.VENKATESH, S/O. S.GIRIYAPPA, AGED ABOUT 39 YEARS, OCC: AYURVEDIC DOCTOR, R/O. KUCHALAKKIKERI, B.H. ROAD, SHIVAMOGGA TALUK-577201.
...PETITIONERS (BY SRI:S.B.TOTAD, ADVOCATE) AND 1. SMT. GOWRAMMA W/O. SURYANARAYANAPPA, D/O. LATE KENCHAPPA, AGED ABOUT 69 YEARS, OCC: HOUSEHOLD, R/O. SOPPINAHATTI, SHIRA, TUMKUR DISTRICT-572137.
2. SMT. SIRI W/O. S.G.VENKATESH, AGED ABOUT 34 YEARS, OCC: HOUSEHOLD, R/O. KUCHALAKKIKERI, B.H. ROAD, SHIVAMOGGA-577201.
3. SRI. SRINIVASAMURTHY S/O. LATE P.R.SHANKARAPA, AGED ABOUT 56 YEARS, OCC: BUSINESSMAN, R/O. AGALI, MADAKASHIRA ANANTHAPURAM DISTRICT, ANDHRA PRADESH-515001.
4. SRI. M.D. PANDURANGA S/O. M.R. DASHARATHA SHAIT, AGED ABOUT 64 YEARS, OCC: BUSINESSMAN, R/O. BEHIND MURUGAN NILAYA, SAVARKAR NAGAR, SHIVAMOGGA-577201.
(BY SRI. K.LOKESH, ADVOCATE FOR C/R1 NOTICE TO R2 TO R4 DISPSNESED WITH) …RESPONDENTS THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 27.07.2017 VIDE ANNEXURE-N PASSED ON I.A.NOS.VIII TO X IN O.S. NO.178/2013 ON THE FILE OF THE II ADDL. SR.CIVIL JUDGE, SHIMOGA AND CONSEQUENTLY ALLOW I.A.NO.VIII VIDE ANNEXURE-C, I.A.NO.IX (ANNEXURE-F) AND I.A.NO.X (ANNEXURE-J) GRANTING PERMISSION TO THE PETITIONERS TO LEAD FURTHER EVIDENCE IN O.S. NO.178/2013 ON THE FILE OF THE II ADDL. SR.CIVIL JUDGE, SHIVAMOGGA AND ETC., THESE WRIT PETITIONS ARE COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Defendant Nos.1 to 4 filed these writ petitions against the order dated 27.7.2017 passed in O.S. No.178/2013 by the II Addl. Sr.Civil Judge, Shimogga on I.A.Nos.VIII to X, rejecting the applications I.As.8 to 10 filed under Section 151 of Code of Civil Procedure and under Order 16 Rule 1 and 6 of Code of Civil Procedure r/w Section 151 of Code of Civil Procedure.
2. The 1st respondent who is the plaintiff (Smt.Gowramma) before the trial Court in O.S. No.178/2013 filed the suit for declaration that the sale deed dated 16.8.1993 entered into between defendants No.1 to 4 and 8 is not binding and the registered partition deed dated 18.02.2010 is null and void and for partition and separate possession of 2/7th share in Schedule ‘A’ properties contending that the suit schedule properties belong to joint family of the plaintiff and defendants and there was no partition in the joint family properties. The defendants filed the written statement denying the plaint averments and contended that Sri.Kenchappa died on 26.08.l973. Before his death, he has executed a registered sale deed on 10.07.1973 (it is in Telugu language) registered in the office of the Sub Registrar, Madakashira, Ananthapuram District, Andhra Pradesh. Therefore, the suit filed by the plaintiff is not maintainable etc., 3. After completion of evidence, when the matter was posted for judgment, at that stage, defendant No.1 filed three applications i.e. I.A.Nos.8, 9 and 10. I.A.No.8 has been filed under Section 151 of C.P.C. permitting the applicant/defendant No.1 to adduce further evidence on his side by re-opening the case. I.A.No.9 has been filed to annex witness list by condoning the delay in filing the same and I.A.10 has been filed under Order 16 Rule 1 and 6 r/w Section 151 of C.P.C. praying to issue witness summons to the witnesses as mentioned in the witness list contending previously he has engaged an advocate Sri.H.P.Vishveshraiah as his advocate to conduct his case. As he was not informed the progress of the case, the case was posted for judgment on 28.07.2017. He had deliberation with the counsel and came to know that he has not examined any witnesses in support of his contention taken in the written statement. Now he has engaged a new counsel and filed the applications requesting the Court to give an opportunity to the said applications. Same was resisted by the plaintiff by filing objections.
4. The trial Court after considering the applications and objections, by the impugned order dated 27.07.2017, rejected all the three applications holding that in spite of granting sufficient time, the defendants have not filed written statement and have not cross examined the plaintiff and he has availed all the opportunities and he himself has chosen to close his evidence and at this fag end of the litigation, these applications cannot be entertained. Further, the reasons assigned by him for not adducing the evidence on his behalf is not convincing and when the sufficient opportunities were given to the defendant No.1 and when he himself has not chose to lead further evidence and when the argument is concluded by his counsel and also counsel for the other parties, it is opined that there is no question of reopening the case and permitting the defendant No.1 to lead further evidence. Hence, the present writ petitions are filed.
5. I have heard the learned counsel for the parties to the lis.
6. Sri.S.B.Totad, learned counsel for the petitioners submits that an opportunity may be given to defendant No.1 to produce the Will executed by Sri.Kenchappa and mark the same. He also submitted that he will produce all the witnesses before the Court on a particular date to be fixed by the Court and he will produce the Will to mark the same and witnesses will be examined on the same day and he will not seek any further adjournment. The said submission is placed on record.
7. Sri. K.Lokesh, learned counsel for the respondents-defendants though opposed to allow the applications that there was deliberate delay on the part of the defendants, he fairly submits that if any particular date to be fixed by this Court to mark the Will and to examine the witness on the same day, he has no objection to allow the applications.
8. Said submission is also placed on record.
9. Having heard the learned counsel for the parties, it is not in dispute that the 1st respondent- plaintiff before the trial Court filed the suit for partition and declaration that the sale deed executed on 16.08.1993 and partition deed dated 18.02.2010 entered into between defendant Nos.1 to 4 is not binding on the sale of the plaintiff in respect of ‘A’ schedule properties and he is entitled to 2/7th share in the ‘A’ schedule property. The same is disputed by the defendants by filing written statement. The rights of the parties has to be decided on merits and the parties should not be deprived by technicality. Though the suit was filed in the year 2013, it is evident from the impugned order that the counsel for the defendants after subjected to cross-examination of DW.1 has submitted that he has no further evidence to lead and the evidence was closed on 03.01.2017. Learned counsel for the petitioners now contended that parties should not be suffer due to mistake of the advocate and due to technicality. In order to give an opportunity to the defendants to substantiate their evidence, as the rights of the parties are involved, this Court is of the considered opinion that an opportunity should be given to both parties. Even though the matter is posted for judgment and the rights of the parties are involved in respect of the immovable property, it has to be decided on merits.
10. In view of the same, impugned order passed by the trial Court rejecting the applications I.As.8 to 10 filed by the defendant No.1 has to be modified permitting the defendant No.1 to produce the Will and mark the same before the trial Court and also permitted to produce the witnesses before the Court and examine the witnesses. The plaintiff to cross-examine the witnesses on the same day itself. Only for the limited purpose the impugned order passed by the trial Court on the applications filed I.As. 8 and 9 are allowed. I.A.10 is allowed only in part permitting the defendant No.1 to produce the witnesses before the Court and cross-examine on the same day. If Will is already marked as contended by the learned counsel for the plaintiff, the question of marking second time would not arise.
11. The trial Court is directed to permit the defendant No.1 to mark the Will if not already marked. The trial Court is directed to fix a date to examine the witness and both the parties are directed to complete examination and cross-examination of the witnesses on the same date. Hence, applications are allowed subject to payment of cost of Rs.5,000/- payable by defendant No.1 to the plaintiff before the trial Court on the same date of hearing. Only subject to payment of cost, the trial Court shall permit defendant No.1 to proceed further on the same day. After completion of evidence, the trial Court shall dispose of the suit within a period of two months.
Writ petitions are disposed of.
Sd/-
JUDGE BS